[Dr. Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University and the co-founder and President of the Public International Law & Policy Group and Roushani Mansoor is a former Fulbright-Clinton Fellow who worked in Dhaka, Bangladesh as a Special Legal Assistant for the Ministry of Law, Justice, and Parliamentary Affairs (on issues unrelated to the Tribunal). She is currently a Law Fellow at the Public International Law & Policy Group.]

Cheers met the first verdict of the International Crimes Tribunal of Bangladesh, which sentenced Abul Kalam Azad to death in absentia. Less than a month later, shouts of “ami, tumi, Bangalee, Bangalee” – meaning “me, you, Bengali, Bengali” – echoed in the streets of Dhaka in reply to another, less popular Tribunal verdict. The Tribunal had handed down a life sentence to Abdul Qader Molla, a punishment many Bangladeshis felt did not match the severity of Qader Molla’s crimes. The Tribunal, mandated to try alleged war criminals from the 1971 Liberation War, aimed to bring closure to Bangladesh’s bloody birth. These moments were not just responses to justice served, but demonstrated a transformation in the Bangladeshi national identity – a transformation in which the Tribunal, as a mechanism of justice, is playing a crucial part.

The Liberation War pitted Bengali Freedom Fighters against the Pakistani Army and local collaborators from anti-liberation groups. These collaborators aided the Pakistani Army, executing attacks and massacring villagers. The nine-month war secured independence for Bangladesh, but at a huge cost. Estimates range from 300,000 to 3,000,000 killed often in gruesome ways; countless more were tortured. Over 200,000 women were subject to rape, and as many as 10 million fled their homes towards India to escape the violence. Over forty years later, the Tribunal operates as a domestic exercise of justice aimed at trying atrocities committed during the war. It strives to erase the attitude of impunity and deliver justice – however delayed – to victims and victims’ families still healing from horrific conflict.

The Liberation War fought for the independence of Bangladesh, and a brand new Bangladeshi national identity was born out of this conflict, largely grounded in this struggle. The generations who lived through the Liberation War had to fight and sacrifice for their national identity but they earned the right to call themselves Bangladeshi. Generations born after the war are certain they are Bangladeshi – it is their birthright. These generations, however, are struggling with the meaning of being Bangladeshi. They are undergoing their own fight for a national identity, one that is predominately based on a war they did not witness.

The one war-related relic these generations have to hold onto is the Tribunal. As a legacy of that liberation struggle, the Tribunal has been intrinsically intertwined with the Bangladeshi national identity. Demand for the creation of the Tribunal began immediately after the Liberation War, and legislation creating the Tribunal was passed in 1973. Subsequent natural disasters, political assassinations, and military coups in Bangladesh prevented the government from actually constituting the Tribunal. However, popular support for the Tribunal did not waver. The hope for a Tribunal was given new life during the 2008 elections where the Awami League campaigned on the promise that if elected, it would constitute the Tribunal during its term. Winning an absolute majority in Parliament, Prime Minister Sheikh Hasina vowed to constitute the Tribunal and bring closure to the bloody birth of Bangladesh after over 40 years of waiting.

The Tribunal was established in March 2010, and the first trial began in October 2011 between the Bangladeshi Government and Delwar Hossain Sayeedi. (Sayeedi was later found guilty and sentence to death in February 2013.) To date, the Tribunal has convicted nine men – three in absentia – on charges ranging from murder, rape, and torture as crimes against humanity, genocide, and war crimes. These individuals have been sentenced to either life in prison or given the death penalty – none have been executed – and most are senior figures in opposition political parties, namely, Jamaat-e-Islami and the Bangladesh Nationalist Party (BNP). Eight individuals are currently on trial and three are being investigated. Both the prosecution and defense can appeal final judgments of the Tribunal to the Supreme Court of Bangladesh. According to legislation passed by Parliament, appeals must be concluded within 60 days.

These trials broadly invoke Bangladesh’s struggle for liberation by awakening nationalist feelings and highlighting those individuals who fought against independence. Individuals either dead or living in Pakistan committed many of the most serious atrocities. However, some alleged war criminals remain in Bangladesh and continue to participate as political, social, and religious leaders, frustrating and angering many Bangladeshis all the while increasing popular support for the Tribunal. Narratives from the trials praise support for independence, while evidence of anti-liberation sentiments and Pakistani sympathy are damning. Within Tribunal opinions, judges have concluded that association with anti-liberation movements or pro-Pakistan groups demonstrates knowledge of – or even guilt for – murders, rapes, and torture.

Because of the explicit link to the liberation struggle, the Tribunal has assumed an active transformational role in defining Bangladeshi national identity best illustrated by the month-long demonstration at Shahbagh in the heart of Dhaka. This demonstration was in response to the Tribunal’s sentencing of Abdul Qader Molla to life in prison. Qader Molla, known as the “Butcher of Mirpur,” was found guilty of five crimes – including murder as a crime against humanity – acquitted of one, and is known to have been an anti-liberation supporter. Many saw his sentence as too lenient and his flashing of a victory sign outside the Tribunal after his sentencing enraged many and sparked the massive demonstration. To be at Shahbagh meant to be demonstrating against perceived leniency for Qader Molla. (After amendments to legislation to allow for appeals on verdicts, the Supreme Court overruled the Tribunal and sentenced Qader Molla to death). But Shahbagh also meant to be demonstrating against those who supported anti-liberation movements, those who did not fight for an independent Bangladesh and a Bengali-based national identity. A movement that began as a demonstration against a specific verdict took on a much greater and deeply passionate magnitude.

Why is this significant? Ultimately, the Bangladesh Tribunal is playing a role in the transformation of Bangladesh’s national identity, but is that acceptable? Is it okay that a mechanism of justice might be serving another purpose besides delivering justice? Over the past few years, it has become clear that the Tribunal has become a symbol of Bangladeshi liberation and identity. The current government is ruled by the Awami League, a political symbol of the liberation struggle, which established the Tribunal and has promised to carry out executions before January 2014 elections. The government feverishly supported the Shahbagh protests and echoed the demonstrators’ sentiments, swiftly passing amendments to satisfy popular demands. Judges have been asked to take the protestors’ feelings of pride and frustration into account when sentencing alleged war criminals.

All of these events connected to the Tribunal articulate a newer Bangladeshi identity. Some argue that this identity is becoming more exclusive while others argue that this identity strengthening its secular roots. Either way, the Tribunal is feeding into this transformation. The Tribunal acts as a mechanism of justice by trying alleged criminals and rendering verdicts, but its verdicts serve, in turn, as a catalyst for a deeper change occurring in the country. Justice is supposed to be blind, its primary purpose is to adjudicate disputes and offer remedies. But what is happening in Bangladesh demonstrates that justice sometimes is not just justice. The primary impact of the Tribunal will be shaping Bangladesh’ national identity; is it okay that this will be the legacy of the Tribunal? For most Bangladeshis, the question is not whether the trials uphold standards of justice, but whether justice, in the name of liberation, is done. What we should be watching closely is not just the Tribunal itself, but the way it contributes to the reshaping of the Bangladeshi national identity.

3 Responses

Let’s not forget that the United States’ consul general in Dacca, Archer Blood “documented in horrific detail the slaughter of Bengali civilians,” informing the White House (i.e., Nixon, Kissinger, et al.) “how Pakistan was using U.S. weapons—tanks, jet fighters, gigantic troop transport airplanes, jeeps, guns, ammunition, to crush the Bengalis.” The consulate informed the White House of an ongoing “selective genocide,” indeed, reminded the powers-that-be at home that the U.S. “was actively and knowingly supporting a murderous regime at many of the most crucial moments.” In fact,
“Blood and almost his entire consulate sent him a telegram formally declaring their ‘strong dissent’—a total repudiation of the policy they were there to carry out. That cable—perhaps the most radical rejection of U.S. policy ever sent by its diplomats—blasted the United States for silence in the face of atrocities, for not denouncing the quashing of democracy, for showing ‘moral bankruptcy’ in the face of what they bluntly called genocide.”
We can with confidence claim that Nixon and Kissinger were throughout this entire horrific episode “unyielding in their support for Pakistan, making possible horrific crimes against humanity, plausibly even a genocide—in the country’s eastern wing.” As Gary J. Bass argues in his recent book, The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide (Alfred A. Knopf, 2013),
“Nixon and Kissinger bear responsibility for a significant complicity in the slaughter of the Bengalis. This overlooked episode deserves to be a defining part of their historical reputations. But although Nixon and Kissinger have hardly been neglected by history, this major incident has largely been whitewashed out of their legacy—and not by accident. Kissinger began telling demonstrable falsehoods about the administration’s record just two weeks into the crisis, and has not stopped distorting since.”
Despite a U.S. arms embargo, the U.S. continued to provide weapons to Pakistan, as Bass notes, “Nixon and Kissinger responded to…legal and democratic constraints on their authority in the classic Nixonian way: by breaking the law.”
It appears clear that Nixon and Kissinger assisted the perpetrators of the crimes in this period, certainly providing the means for their commission, apart from encouraging or supporting the Pakistani regime all the while fully cognizant of the crimes being committed. Bass’s account allows us to infer clear and substantive knowledge on the part of Nixon and Kissinger “of the primary perpetrator’s intent.” With Nixon and Kissinger the primary but not sole decision makers in this regard, there was equally transparent direct and indirect support for crimes against international law.

Thanks for the post. I would be interested in your take on why the UN has not supported this tribunal, and also on the implications of its application of the death penalty.

11.18.2013
at 11:10 pm EST Curbed

In 1973, Professor Al Blaustein and I met with the Foreign Minister, Attorney General, and President of the Supreme Court of Bangladesh during a conference in the Ivory Coast to discuss creation of legislation for prosecution of crimes against humanity, crimes against peace, genocide, and war crimes. Later, we created draft legislation for Bangladesh which had some effect on creation of the 1973 Bangladesh International Crimes Act of July 19, 1973 (which is in the Paust, Bassiouni, et al., International Criminal Law Documents Supplement (4 ed. 2013) at pages 183-190). Even later, we prepared a critique of sorts of the new legislation, an extract of which is in Paust, Bassiouni, et al., International Criminal Law 511-13 (4 ed. 2013 (Carolina Academic Press). And in 1978, our article on War Crimes Jurisdiction and Due Process: The Bangladesh Experience was published in vol. 11 of the Vanderbilt Journal of International Law at pages 1-38. There, we addressed creation of the state of Bangladesh from the massacres, thru and insurgency, thru a belligerency to which all of the customary laws of war applied, to creation of the state; alleged violations of genocide, customary laws of war, the 1949 Geneva law, and other international norms; jurisdiction under international law and the duty to initiate prosecution; human rights to due process of law of accused; and other matters. Our article was cited in the Tadic case before the ICTY and was reprinted in part elsewhere.

11.19.2013
at 4:11 pm EST Jordan

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